[License-review] For Approval: W3C Software and Document License

[Wendy Seltzer]

On 08/09/2017 02:47 PM, Carlo Piana wrote:
> Wendy, all,
> 
> A few belated comments, as the early decision on the previous version
> would probably estop objections to approval on pre-existing terms.
> Because of the public and general teaching that our discussion creates
> to the benefit of all drafters, I will anyhow make two them for the records.

Thanks Carlo, replies below:
> 
> # Lack of a full liability disclaimer (common to many licenses)
> 
> One thing that has always puzzled me is that the liability disclaimer is
> **only to the benefit of the copyright holder(s)**. That means that if I
> merely host the software to the benefit of others, or make insubstantial
> (copyright-wise) changes, or just plug a component in my non-derivative
> project, thus **not being copyright holder, but liable** for the very
> use of the permissions of the  license, I will not be protected by the
> liability disclaimer.
> 
> I understand that many of the licensing conditions only belong to the
> copyright holders, but with specific regard to liability (hence not a
> direct copyright issue), why these licenses let non-copyright-holders
> out in the cold, unprotected? Why not just using the elegant wording of
> the GPL v3 as a reference: "ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO
> MODIFIES AND/OR CONVEYS THE PROGRAM AS PERMITTED ABOVE"?
> 
> This discussion has arguably no impact on OSD compliance (or has it?),
> the non-copyright-holder may add their own distribution terms, I reckon.
> But those distribution terms **would not be based on copyright law**;
> rather they will be on contractual or quasi-contractual grounds,
> therefore in a much less solid terrain, if not in the sand. I would like
> to see this point addressed by all submitters, if their license want to
> create  commons and an ecosystem.

The copyright license document speaks for the copyright holders, so it
is their statement that they are disclaiming any liability.

Distributors remain free to make their own non-conflicting statements,
such as adding their own disclaimers of liability, or, if they choose,
accepting liability (perhaps for a fee).


> # Implied possible ambiguity as to patents
> 
> On a different but related topic.
> 
> This license reads an evident copyright-only license: wide use of
> copyright only concepts and wording; lack of any even vague reference to
> patents or other rights impinging (h/t Andrew Katz) on the software are
> a red herring. Is there any *arrière pensée* that the patents (if any)
> that may read on an unmodified version of the software are intentionally
> not licensed by the copyright holders and therefore if someone wanted to
> use, distribute, copy, modify etc. the software, she should seek a
> separate license?

This is a copyright-only license. It makes no statement about the
presence or absence of patent claims covering the licensed works.
Copyright and patent are distinct regimes, so I don't believe there's
ambiguity in offering one without discussing the other.

As you note, W3C Recommendations have a distinct patent policy,
https://www.w3.org/Consortium/Patent-Policy that applies, per its terms,
when a specification is made a W3C Recommendation.

--Wendy

> 
> I am aware of the IPR policy of W3C in this domain, and that this would
> be an infrequent (but not impossible!) case in the context; I am also
> aware that the suggested proliferation category is "non reusable". Yet,
> leaving such possibility open is something that in a modern FOSS license
> creates potential problems and eventually non-openness. Besides, despite
> the clear ‒ and maybe elsewhere clearly spelled out ‒ intentions of the
> drafters, a license might be interpreted beyond the intentions of the
> drafter and sometimes also not against her interests; in many laws there
> is a *contra proferentem* rule, but that may be recessive or non
> applicable, and anyway being based on contractual law, *the rule itself*
> would largely vary, never mind *its concrete application*. So if leaving
> patents out of the license was not the intention of the drafters, this
> could very well be the legal consequence of applying the proposed license.
> 
> In a nutshell: what is the attitude of the license WRT the
> (hypothetical) patents held by a copyright holder reading on the
> licensed work?
> 
> And why ‒ if the ambiguity was spotted ‒ was it not more clearly avoided
> one way or the other? 
> 
> At least up to the limited approach to the problem that the APL takes
> (contributors' patent license), patents should be expressly taken care
> by a FOSS license. See the CC0 discussion, and, in similar terms, see
> the discussion we had WRT the MXM license. The fact that BSD and MIT,
> and all academic licenses are historical cornerstones of FOSS licensing
> is not a reason to perpetuate an use which was state-of-the art back
> then, but it is by an large not any more.
> 
> Cheers
> 
> Carlo
> 
> 
> On 09/08/2017 19:35, Wendy Seltzer wrote:
>> Hi,
>>
>> This is a submission of the W3C Software and Document License (2015) for
>> Approval, per the process described at https://opensource.org/approval .
>> I am counsel to the World Wide Web Consortium (W3C).
>>
>> The license can be found at:
>> https://www.w3.org/Consortium/Legal/2015/copyright-software-and-document
>> A text copy of the license is attached.
>>
>> Rationale: This 2015 revision updates the earlier version of a W3C
>> Software License currently listed by OSI:
>> https://opensource.org/licenses/W3C
>> The 2015 version makes clear that the license is applicable to both
>> software and text, by changing the name and substituting "work" for
>> instances of "software and its documentation." It moves "notice of
>> changes or modifications to the files" to the copyright notice, to make
>> clear that the license is compatible with other liberal licenses.
>>
>> Distinguish: This license is substantively equivalent to the previous
>> version of the W3C Software License. We should replace the previous
>> version with this 2015 version.
>>
>> Legal review: W3C counsel discussed with the W3C Patents and Standards
>> Interest Group; Advisory Committee; and membership. We believe it to be
>> substantively equivalent to the earlier license.
>>
>> Proliferation category: Replacing an existing Non-reusable license.
>> W3C updated the license to reduce proliferation by making it clearly
>> possible to publish both software and spcopyrightecifications under the same
>> free/open license. The license is used by W3C groups and their
>> contributors for software such as test suites and reference
>> implementations, as well as for some documentation and specifications.
>>
>>
>>
>> I'm making this request now because a W3C participant brought to my
>> attention that projects would find it easier to use and distribute
>> W3C-licensed software if our current license were OSI-listed.
>>
>> Please let me know if you have any questions.
>>
>> Thanks,
>> --Wendy
>>
>>